Wednesday, December 19, 2012

Robert Bork, 1927-2012

Judge Robert Bork, one of America's most prominent jurists and legal thinkers passed away today, at age 85.

After receiving a Phi Beta Kappa with his law degree at the University of Chicago, serving in the Marine Corps and spending some time in private practice, he went on to become a revered professor at Yale Law School and a highly regarded legal thinker whose writings virtually reformed the practice of antitrust jurisprudence and pioneered a lot of the modern movement back towards originalism in constitutional law. It's no exaggeration to say that almost every prominent jurist in America was affected by his ideas, not to mention a number of his other students like Bill Clinton, Hillary Rodham Clinton, Anita Hill, Robert Reich, Jerry Brown, John R. Bolton, Samuel Issacharoff, and Cynthia Estlund.

Bork's attitude towards the Constitution and the Founders can be summed up in one famous quote: "The truth is that the judge who looks outside the Constitution always looks inside himself and nowhere else."

Bork served as solicitor general in the Nixon and Ford Administration, and then served as a judge on the DC Circuit Court of Appeals before being nominated by President Reagan to as a justice for the Supreme Court.

What happened next gave a whole new word to the language, 'borked', referring to gratuitous slander and defamation used as a toll in political warfare.

The Democrats on the Left had regained a senate majority in the 1986 midterms, had already warned President Reagan that they wanted someone with their ideology nominated to replace retiring Justice Lewis Powell, and that they would fight tooth and nail against anyone he nominated who didn't pass muster with them. When President Reagan nominated the eminently qualified Bork in 1987, they declared open war.

Led by Senator Ted Kennedy, they attacked his morals, his character, played the race card and stopped at nothing, Here's a sample of Kennedy in action:

Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is— and is often the only— protector of the individual rights that are the heart of our democracy..

Imagine, being lectured on morality by Ted Kennedy.

Bork's response was to state simply "There was not a line in that speech that was accurate."

He was right, but with media like the New York Times and the alphabet networks leading the way, the message that Bork was a radical extremist, a racist and a fascist took hold and became the narrative.

Nothing like that had ever taken place during the confirmation of a Supreme Court justice, and Kennedy's tactics opened up a whole new era of bitter partisan warfare, another of his legacies to the American people that still besmirches our country and its politics long after his death.

The Reagan Administration was not prepared for this, and neither was Judge Bork. When he responded with feeling to the attacks by Kennedy and others on his morals and character, Kennedy was able to corral enough votes to defeat his nomination, 58–42.
Roger Kimball is quite correct in calling it 'obscene'. It was.

Bork went on to continue his career as one of America's most prominent legal thinkers. He became a a senior fellow at the American Enterprise Institute, the Hudson institute, did some legal consulting with private clients and taught at the University of Richmond School of Law and at the Ave Maria School of Law in Naples, Florida.

He also write two best selling books, "The Tempting of America" and "Slouching Towards Gomorrah: Modern Liberalism and American Decline."

To read them is to engage with a mind of prodigious intellectual fire power, and their prescience in analyzing the role of the Left in the decline of American freedom and civil society is eye opening.

Judge Bork passed away after living a life of accomplishment and leaving behing a legacy of work and thought that will long out last his time on earth.